Citation Nr: 21000352
Decision Date: 01/05/21	Archive Date: 01/05/21

DOCKET NO. 16-49 148
DATE: January 5, 2021

ORDER

The appeal for entitlement to service connection for tinnitus is dismissed.  

FINDING OF FACT

In December 2020, prior to promulgation of a decision in this appeal, the Board of Veterans’ Appeals (Board) was notified that the Veteran had died in December 2020.  

CONCLUSION OF LAW

Due to the death of the Veteran, the Board has no jurisdiction to adjudicate the merits of the appeal at this time.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.  

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service from June 1956 to May 1958 and from January 1985 to May 1985.  He had additional duty with the Army Reserve/Army National Guard.  

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, appellants’ claims do not survive their deaths.  Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330 (1997); Landicho v. Brown, 7 Vet. App. 42 (1994).  This appeal on the merits has become moot by virtue of the death of the Veteran and must be dismissed for lack of jurisdiction.  38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.  

In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claims brought by a survivor of the Veteran.  38 C.F.R. § 20.1106.  

The Board’s dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the Appellant for purposes of processing the claims to completion.  Any request must be filed not later than one year after the date of the Veteran’s death.  38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(b).  A person eligible for substitution includes a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C. § 5121(a).  38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(a).  An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant should file a request for substitution with the Department of Veterans Affairs office from which the claims originated.  38 C.F.R. § 3.1010(b).  

 

 

Harvey P. Roberts

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. T. Hutcheson, Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.